The Practical Legal Need for an ISIL AUMF

“The Trump White House is nearing completion of an order that would direct the Pentagon to bring future Islamic State detainees to the Guantánamo Bay prison,” reports Charlie Savage. This development gives new urgency to the enactment of an ISIL AUMF.

Since President Obama extended the 2001 AUMF to apply to ISIL over two years ago, there has been no pressing practical legal need to enact an explicit ISIL AUMF since there was no practical context in which a court could consider the legality of the President’s interpretation. The main reason why courts never passed on President Obama’s unilateral extension of the 2001 AUMF to ISIL is that Obama did not bring any ISIL detainees to GTMO who could challenge his AUMF interpretation on habeas. (Recall that the one attempt to challenge his interpretation of the AUMF, the lawsuit by Captain Smith, was dismissed on threshold issues by the district court).

The lack of any threat of judicial review of the President’s extension of the AUMF to ISIL allowed Congress to dawdle and avoid the responsibility that would inhere in a vote on an ISIL AUMF. And it left the Obama administration in the position of pushing for its proposed ISIL AUMF on the largely symbolic ground of “supporting the troops.” Not surprisingly given the relatively small practical consequences of non-action, Congress did not act.

But if President Trump follows through on his campaign pledge to “load [GTMO] up with some bad dudes,” and if, as Savage suggests, those bad dudes will include members of ISIL, then suddenly President Obama’s extension of the AUMF to ISIL will be subject to judicial review. The moment the Trump administration brings an ISIL detainee to GTMO, that detainee will seek habeas review in the D.C District court, which will face no threshold hurdles to reaching the merits of the extension of the AUMF to ISIL. It is possible that habeas courts will agree with Obama's original interpretation. It is also possible it will rule for the President based on something like Randy Moss’s theory that Congress’s many appropriations for the ISIL fight count as an authorization for that fight. But the Obama interpretation is no clincher. And even if the courts accept the Moss theory, which is not certain, that theory only concerned appropriations-as-authorization for purposes of overcoming the War Powers Resolution’s presumption that appropriations could not serve as authorization. It is far from clear that an authorization via appropriations will possess the congressional clarity for detention authority that Hamdirequires. And so it is easy to imagine a habeas court ruling that the President does not have the authority to detain a member of ISIL because the 2001 AUMF does not extend to ISIL. (This conclusion would also entail that the 2001 AUMF would not support the President's military force against ISIL, though as Bobby has written frequently, the President’s targeting authorities (though probably not attendant detention authorities) might well be supported independently by Article II.)

Neither President Trump nor Congress should want to roll these dice. So there is now a real need for Congress to get off its bottom and enact an AUMF for ISIL. And note: The time to enact a new AUMF is before, not after, an ISIL detainee is brought to GTMO. Having an ISIL AUMF in place before the first ISIL detainee is captured and brought to GTMO is necessary to avoid retroactivity problems and the possibility of having to rely on appropriations as the authority at time of capture.

There are many ways for Congress to enact an ISIL AUMF. But the easiest way politically is probably to enact an ISIL AUMF that is neutral in the sense that it doesn’t alter in any direction the authority that Obama claimed under the 2001 AUMF and that Congress has in effect been supporting through its appropriations. To that end, I hereby propose a 15-word AUMF: “The President is authorized to use all necessary and appropriate force against the Islamic State.” I believe that these 15 words, if enacted, would refresh every statutory authority to use force that President Obama claimed under the 2001 AUMF, and would not give him any more or any less authority than he claimed. There would need to be preambular and definitional language, of course, and Congress would probably want to muck up some things and clean up others. The point is that it should not be hard for Congress to simply specify that the President is authorized to do no more and no less than the Executive has been doing for years.

Go ahead Congress, it is easy. If you don’t act soon, and if President Trump brings an ISIL detainee to GTMO, you run the risk of a court declaring the President’s military efforts against ISIL under the 2001 AUMF unlawful.

Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.